SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

324 

KA 12-01247 

PRESENT: SCUDDER, P.J., FAHEY, SCONIERS, VALENTINO, AND MARTOCHE, JJ. 

 

THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT, 

V MEMORANDUM AND ORDER

QUENTIN A. SIMS, DEFENDANT-RESPONDENT. 

FRANK A. SEDITA, III, DISTRICT ATTORNEY, BUFFALO (NICHOLAS T. TEXIDO

OF COUNSEL), FOR APPELLANT.

THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (ROBERT L. KEMP OF

COUNSEL), FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Erie County Court (Michael F. 

Pietruszka, J.), dated June 5, 2012. The order granted those parts of 

the omnibus motion of defendant seeking to suppress certain physical

evidence and oral statements. 

It is hereby ORDERED that the order so appealed from is reversed

on the law, those parts of the omnibus motion seeking to suppress

statements and physical evidence are denied, and the matter is

remitted to Erie County Court for further proceedings on the

indictment. 

Memorandum: The People appeal from an order that granted those

parts of defendant’s omnibus motion seeking to suppress physical

evidence, i.e., a handgun, and defendant’s oral statements to the

police. We agree with the People that County Court erred in granting

those parts of defendant’s motion. The arresting officer did not

violate defendant’s rights when he approached him and asked for

identification. According to the testimony presented by the People at

the suppression hearing, the arresting officer and his partner were

driving down the street in their marked patrol vehicle when defendant

emerged from an alleyway riding a bicycle. The arresting officer

testified that defendant continued to stare at him as defendant rode

alongside the patrol vehicle for about 10 to 15 feet. Defendant was

staring at the arresting officer when he “rode the bicycle into a

porch” of a residence and “fell.” Defendant then “ran up on the

porch.” At that point, the arresting officer was justified in asking

defendant if he lived at the residence and, when defendant replied

that he did not, in asking defendant for identification. Indeed,

“[t]he testimony at the suppression hearing establishes that the

police officer[] had an objective, credible reason for initially

approaching defendant and requesting information about him” (People v

Hill, 302 AD2d 958, 959, lv denied 100 NY2d 539; see People v Bracy,
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KA 12-01247 

91 AD3d 1296, 1297; see generally People v Hollman, 79 NY2d 181, 190-

192).

We further conclude that the evidence presented at the

suppression hearing establishes that the arresting officer had

reasonable suspicion to believe that defendant posed a threat to his

safety at the time he grabbed defendant’s hand. According to the

officer’s testimony, defendant placed his hand in his pocket at least

three times in spite of the arresting officer’s requests that he not

do so. Moreover, defendant placed his hand in his pocket even though

he had previously told the arresting officer that he did not have any

identification. According to the testimony of the arresting officer’s

partner, the officers were located in an area that was the “most

violent project in the City of Buffalo” and was known for “guns and

drugs.” Based on that evidence, we conclude that the arresting

officer’s action in grabbing defendant’s hand on the outside of his

pants pocket as defendant reached inside the pocket was a

“constitutionally justified intrusion designed to protect the safety

of the officer[]” (People v Robinson, 278 AD2d 808, 809, lv denied 96

NY2d 787; see Bracy, 91 AD3d at 1297-1298). The arresting officer

“had a reasonable basis for fearing for his safety and was not

required to ‘await the glint of steel’ ” (People v Stokes, 262 AD2d

975, 976, lv denied 93 NY2d 1028, quoting People v Benjamin, 51 NY2d

267, 271).

Given that the arresting officer, upon grabbing defendant’s hand,

touched an object through defendant’s pocket that he believed to be a

small handgun, “the officer did not act unlawfully in reaching into

the pocket and removing the object” (Bracy, 91 AD3d at 1298; see

People v Davenport, 9 AD3d 316, 316, lv denied 3 NY3d 705). Finally,

because the arresting officer’s conduct was lawful, defendant’s oral

statements to the police are not subject to suppression as fruit of

the poisonous tree (see generally People v Carter, 39 AD3d 1226, 1226-

1227, lv denied 9 NY3d 863).

All concur except FAHEY and SCONIERS, JJ., who dissent and vote to

affirm in the following Memorandum: We respectfully dissent because

we conclude that County Court properly granted defendant’s motion to

suppress physical evidence and his oral statements to the police. We

agree with the majority that the police had a legitimate reason to

request information from defendant (see People v De Bour, 40 NY2d 210,

220). Nevertheless, the court properly determined that the police

lacked the necessary justification to escalate the encounter to a

level three pat down of defendant. Pursuant to De Bour, “level three

authorizes an officer to forcibly stop and detain an individual, and

requires a reasonable suspicion that the particular individual was

involved in a felony or misdemeanor” (People v Moore, 6 NY3d 496, 498-

499). Here, there was no proof that defendant had committed a crime. 

Moreover, there had been no radio call or other report of a crime in

the vicinity preceding this encounter. Defendant had merely stared at

police officers while riding his bicycle, whereupon he rode the

bicycle into the steps of a porch, fell off the bicycle, jumped up,

and ran up the steps. When asked for identification, defendant

responded that he had none. Also, defendant placed his hand in his
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KA 12-01247 

pocket at least three times, contrary to a police officer’s requests

that he not do so. “It is . . . well settled that actions that are

‘at all times innocuous and readily susceptible of an innocent

interpretation . . . may not generate a founded suspicion of

criminality’ ” (People v Riddick, 70 AD3d 1421, 1422, lv denied 14

NY3d 844; see People v Powell, 246 AD2d 366, 369, appeal dismissed 92

NY2d 886). Here, the fact that defendant put his hand in his pocket,

“absent any indication of a weapon such as the visible outline of a

gun or the audible click of the magazine of a weapon, does not

establish the requisite reasonable suspicion that defendant had

committed or was about to commit a crime” (Riddick, 70 AD3d at 1422-

1423). In addition, the fact “that this may have been a high-crime

area . . . could not itself validate the search since no other

objective indicia of criminality existed to supply the requisite

reasonable suspicion for the forcible stop and frisk” (Powell, 246

AD2d at 369-370; see Riddick, 70 AD3d at 1423). Importantly, this

Court has consistently held that “[g]reat deference is afforded the

findings of the suppression court” (People v Davis, 48 AD3d 1120,

1122, lv denied 10 NY3d 957, citing People v Prochilo, 41 NY2d 759,

761; see e.g. People v Peay, 77 AD3d 1309, 1310, lv denied 15 NY3d

955; People v Williams, 202 AD2d 976, 976, lv denied 83 NY2d 916) and,

affording appropriate deference to the findings of the suppression

court, we conclude that an affirmance is warranted. 

Entered: May 3, 2013 Frances E. Cafarell

Clerk of the Court